People v Durham
Annotate this CaseDecided on February 23, 2012
Supreme Court, Kings County
People of the State of New York
against
Hassan Durham
1491/2011
Emily S. Kane, Esq.
The Legal Aid Society
For the Defendant
Lindsay Zuflacht, Esq.
Asst. District Attorney
For the People
Guy J. Mangano Jr., J.
The defendant is charged with Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03) and Criminal Possession of the Weapon in the Fourth Degree (Penal Law § 265.01). A Dunaway/Mapp/Huntley hearing was ordered and held. The People called one witness: New York City Police Officer Michael Burbridge.
FINDINGS OF FACT
This Court finds the People's witness to be credible.
In the early morning hours of February 19, 2011, Police Officer Michael Burbridge and his partner, Officer Grandstaff, were on anti-crime patrol in an unmarked police vehicle within the confines of the 79th Precinct. At approximately 1:15 am, the duo observed a large group of youths exiting a party near the corner of Atlantic and Franklin Avenues, Brooklyn. The officers were patrolling this particular area after receiving intelligence earlier of some possible teenaged gang activity. One of the youths had raised their attention when Officer Burbridge overheard him speaking with others, asking them, "where is it, yo, where is it," as he contemporaneously looked on the ground and under vehicles parked in the area. The individual repeated this behavior and stopped only after the officers exited from their vehicle. No further action was taken against this individual at that time.
The officers resumed their patrol, and at approximately 1:58 am, the unmarked vehicle was [*2]in the southbound lane of Franklin Avenue near the corner of Breevort Place, Brooklyn, when the officers again observed the same individual who had apparently been searching for something on the ground shortly before. During this second encounter, the individual began to yell toward another person down the street, "the police, the police." Officer Grandstaff exited the vehicle to approach this individual, while Officer Burbridge remained in the driver's side training his eyes on the other person, defendant herein, who was approximately 70 feet away. In apparent reaction to being warned of police presence, defendant jumped over a fence which invited Officer Burbridge to drive the vehicle closer to investigate. Clandestinely positioning the police vehicle in a well lit area between two parked cars, approximately twenty feet from where defendant was standing, Officer Burbridge observed him remove a "black L-shaped object that you grip on the side and it comes down like an L, upside-down L," from his waistband and place it into a row of garbage cans.
Believing the object to be a handgun, Officer Burbridge immediately exited his vehicle and informed defendant to "come here, police, come here, police." The officer grabbed defendant and restrained him while at the same time using a point-to-point radio to request assistance. Within one minute, Police Officer Brennan arrived at the scene and was instructed by Officer Burbridge to recover the firearm from the garbage cans. Officer Brennan recovered a loaded black 9mm Smith and Wesson handgun, and defendant was placed under arrest.
On the way to the 79th Precinct, defendant stated to Officer Burbridge, "can you just take me home or call my mom. I live right up the block."
Defendant challenges the constitutionality of the warrantless arrest as well as the admissibility of the recovered firearm and statement made on the way to the precinct.
CONCLUSIONS OF LAW
DUNAWAY and MAPP ISSUES
In enforcing the constitutionally protected right to be left alone, the level of permissible intrusion by law enforcement officers during street encounters with private citizens is governed by the four-tier analysis as set forth in People v De Bour (40 NY2d 210). The lowest level of intrusion in approaching an individual to request information is permitted where there exists some objective credible reason for the interference not necessarily indicative of criminality (see id.; see also People v Hollman, 79 NY2d 181; People v Wells, 226 AD2d 406). The next level of intrusion, the common law right to inquire, is allowable when the police have a "founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion in that a policeman is entitled to interfere with a citizen to the extent necessary to gain explanatory information, but short of a forcible seizure" (People v De Bour, 40 NY2d 210, supra at 223). Third, a police officer may pursue, stop and detain a person when a reasonable suspicion exists that such person has committed, is committing or is about to commit a crime (see id.; see also CPL 140.50; People v Martinez, 80 NY2d 444; People v Hollman, 79 NY2d 181, supra; People v Leung, 68 NY2d 734). Finally, the fourth level of intrusion permits the arrest and custody of a person where the police have probable cause to believe that the person has committed a crime (see People v De Bour, 40 NY2d 210, supra; People v Hollman, 79 NY2d 181, supra; see also CPL 140.10; People v Brown, 256 AD2d 414).
The record establishes that the police were patrolling an area of Brooklyn for which they had received information of teenaged gang activity occurring at a large party. During the early morning hours of the day, the police observed a large group of youths leaving a party and their attention was ultimately drawn to two individuals: an unapprehended male who was sounding an alert of police [*3]presence, and defendant, who had jumped over a fence as the alert was being broadcast in his direction. Based upon the circumstances presented, the officer had an articulable basis for driving the police vehicle toward the defendant in a clandestine and minimally intrusive manner to investigate and inquire of the defendant as to his activities (see People v Wells, 226 AD2d 406, supra; see also People v Salaman, 71 NY2d 869; People v De Bour, 40 NY2d 210, supra; People v Decayette, 217 AD2d 557, appeal denied 86 NY2d 841; People v Jackson, 158 AD2d 545, appeal denied 76 NY2d 737; People v Perry, 133 AD2d 380, aff'd 71 NY2d 871). Officer Burbridge never exited the police vehicle, alerted defendant to his presence or acted in any manner which would or could have caused defendant to react to any unlawful police conduct (see People v Martinez, 207 AD2d 807 [pursuit of defendant was silent and unobtrusive and it was probable that the defendant did not know that he was being observed by the police when he discarded the weapon]).
Defendant was physically stopped and detained only after the officer observed him remove what appeared to be a handgun from his waistband and place it into a garbage can. "It is quite apparent to an experienced police officer, and indeed it may almost be considered common knowledge, that a handgun is often carried in the waistband" (People v Benjamin, 51 NY2d 267, 271; People v Rivera, 286 AD2d 235). Moreover, the "bulge or grasp at the waist is telltale of a weapon,' and upon the officer's observation of "defendant's grasping motion, the officer had reasonable suspicion of criminal activity, which justified the [stop]" (People v Rivera, 286 AD2d 235, supra at 235-236; People v Rodriguez, 71 AD3d 436). Accordingly, the police had at least a reasonable suspicion to detain defendant while a fellow officer retrieved the abandoned firearm (see People v Gayle, 187 AD2d 450). The encounter ripened into probable cause to arrest once the police recovered the abandoned weapon from the area where defendant had dropped it (see People v Butler, 293 AD2d 686, lv denied 98 NY2d 695; People v Hills, 295 AD2d 365, lv denied 98 NY2d 730; People v Santiago, 206 AD2d 492, lv denied 84 NY2d 872; People v Yizar, 196 AD2d 517, lv denied 82 NY2d 809; People v Wilson, 147 AD2d 602).
As for the admissibility of the weapon retrieved from a garbage can, since defendant's purposeful abandonment of the property was not precipitated by any illegal police conduct, he lacks standing to challenge its recovery (see People v Martinez, 80 NY2d 444, supra; People v Leung, 68 NY2d 734, supra; see also People v Mora, 259 AD2d 562; People v Ramirez-Portoreal, 88 NY2d 99). In any event, the weapon was properly searched for and recovered based upon the police officer's observations and there was no police conduct which could be construed in any manner as an unreasonable governmental intrusion (see People v Morales, 197 AD2d 710, appeal denied 82 NY2d 900 People v Goodwine, 177 AD2d 708, appeal denied 79 NY2d 920; see also People v Meredith, 201 AD2d 674, appeal denied 83 NY2d 1005).
Thus, since the police were justified in approaching, stopping and subsequently arresting defendant, the weapon recovered will be admissible at trial.
HUNTLEY ISSUE
As for the statement made by defendant to Officer Burbridge while on the way to the 79th Police Precinct, the record is clear that the statement was voluntary and spontaneous and was not the product of police interrogation or its functional equivalent (see People v Rivers, 56 NY2d 476; see also People v Davis, 261 AD2d 411, lv denied 93 NY2d 1002; People v Green, 258 AD2d 531, lv denied 93 NY2d 971; People v Schreiber, 250 AD2d 786, lv denied 92 NY2d 905).
Accordingly, the statement will not be suppressed. [*4]
This shall constitute the Decision and Order of the Court.
__________________________________
HON. GUY J. MANGANO, JR.
JUSTICE OF THE SUPREME COURT
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